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U.S. 1st Circuit Court of Appeals, October 01, 2009 US v. Torres-Oliveras, No. 07-2720
Sentence and conviction of defendant for drug-related crimes is affirmed where: 1) defendant’s appeal waiver is valid, and thus, direct appeal of his conviction and sentence is not permitted under the terms of the waiver to which he assented; 2) district court did not abuse its discretion in denying defendant’s pro se motion for modification of his term of imprisonment as he stipulated to possession with intent to distribute powder cocaine, and the revised guideline regarding crack cocaine possession was simply not applicable; and 3) defendant’s Kimbrough claim is rejected.

U.S. 2nd Circuit Court of Appeals, September 28, 2009 Dunlap v. Burge, No. 07-0592 In a robbery prosecution, grant of petitioner’s habeas petition is reversed where the district court erred in failing to accord the deference required by 28 U.S.C. section 2254(d) to the state court’s evaluation of the pretrial identification procedures used by the police.

U.S. 2nd Circuit Court of Appeals, September 28, 2009 Jova v. Smith, No. 08-2816 In an action by prisoners claiming that defendant prison personnel infringed their right to practice their religion under the Religious Land Use and Institutionalized Persons Act, summary judgment for defendants is affirmed in part where the restrictions imposed on plaintiffs’ practice were justified by powerful security and administrative interests, but reversed in part where defendants did not demonstrate that the religious/meatless alternative menu was the least restrictive means of furthering their compelling administrative interests.
U.S. 2nd Circuit Court of Appeals, September 30, 2009 Roberts v. Babkiewicz, No. 08-3858 In a 42 U.S.C. section 1983 action alleging malicious prosecution, dismissal of the action is reversed where it was unclear that the criminal charge against plaintiff that the state dropped was necessarily related to or arose from the same circumstances as the criminal offense to which plaintiff pleaded guilty, and thus it was unclear under Connecticut law whether the dismissal of the underlying criminal offense resulted in a “favorable termination.”

U.S. 2nd Circuit Court of Appeals, October 01, 2009 US v. Shim, No. 08-1834 Defendant’s conviction for conspiring to transport women in interstate and foreign commerce for the purpose of prostitution is reversed where the district court erred in failing to instruct the jury that defendant had to know that the women were transported in interstate commerce to be guilty of the offense.

U.S. 2nd Circuit Court of Appeals, October 02, 2009 Wang v. Holder, No. 07-5369 In a petition for review of the BIA’s order denying petitioner’s application for asylum, withholding of removal under 8 U.S.C. section 1231(b)(3), and withholding of removal under the Convention Against Torture, the petition is denied where petitioner’s participation in a scheme to sell organs for profit on the black market was a serious nonpolitical crime.

U.S. 5th Circuit Court of Appeals, September 30, 2009 US v. Rhine, No. 08-10502 Defendant’s drug and firearm possession sentence is reversed where the district court clearly erred when it determined that defendant’s earlier drug-related activity was relevant conduct for sentencing purposes.

U.S. 6th Circuit Court of Appeals, September 28, 2009 US v. Metcalfe, No. 08-1812 District court’s post-judgment order denying defendant’s motion for a sentence reduction is affirmed as the appeal lacked merit and 18 U.S.C. section 3582(c)(2) is not a vehicle for convicts to raise unrelated sentencing challenges that they had previously overlooked or omitted.

U.S. 6th Circuit Court of Appeals, September 29, 2009 Montgomery v. Bagley, No. 07-3882 In a death penalty case, district court’s new trial order granting defendant’s petition for habeas relief based on a finding that the state violated Brady is affirmed where: 1) a withheld pretrial report was exculpatory and should have been disclosed at trial; 2) it was material because, if true, it would likely change the outcome of the trial; and 3) the ultimate determination concerning the truth of the withheld report is for the state courts to resolve. District court’s denial of the Rule 59(e) motion to alter or amend is affirmed and the remaining issues raised in petitioner’s cross-appeal are pretermitted.

U.S. 6th Circuit Court of Appeals, October 01, 2009 US v. Quinney, No. 07-4055 In a prosecution for manufacturing and passing counterfeit currency, district court’s denial of defendant’s motion to suppress key evidence used against him is reversed and remanded where: 1) the inevitable discovery doctrine does not apply to warrantless searches where a warrant could have been obtained based on probable cause; and 2) the case is remanded to evaluate the statements made by defendant to the agents, based on the mistaken belief that the printer was properly admissible evidence, to evaluate whether they should also be suppressed as fruit of the poisonous tree.

U.S. 7th Circuit Court of Appeals, September 28, 2009 US v. Sutton, No. 08-3370 Sentence of defendant convicted of health care fraud in violation of 18 U.S.C. section 1347 to the statutory maximum of ten years’ imprisonment followed by two years of supervised release is vacated and remanded as the district court erred in imposing a six-level adjustment because the guidelines are clear that monetary loss is required, and no such loss was suffered by the 2000-plus individuals whose identities were used by defendant to perpetuate his fraud.

U.S. 7th Circuit Court of Appeals, September 29, 2009 US v. White, No. 06-3574 In a consolidated appeals involving five defendants convicted for participating in a long-running conspiracy to distribute illegal drugs, district court’s judgment is affirmed for the most part and remanded in part where: 1) a defendant sentenced to 292 months’ imprisonment is entitled to a remand for resentencing in light of Kimbrough v. US, 128 S.Ct. 558 (2007), as the district court abused its discretion in treating the disparity between crack cocaine and powder cocaine as mandatory and the government could not show that the error was harmless; and 2) convictions and sentences of remaining defendants are affirmed.

U.S. 7th Circuit Court of Appeals, October 01, 2009 Hunter v. Amin, No. 08-3719 In plaintiff’s 42 U.S.C. section 1983 case against a county including the county sheriff, county jail employees, and a psychiatrist provided by the county jail, arising from the death of plaintiff’s brother while detained in jail, district court’s entry of summary judgment in favor of all of the defendants is affirmed in part, reversed and remanded in part where: 1) district court correctly concluded that county’s policy of requiring a corrections officer to be present during psychiatric examinations at the jail did not violate plaintiff’s brother’s constitutional right to adequate mental health treatment; 2) summary judgment as to a medical malpractice claim against the treating psychiatrist is reversed and remanded where plaintiff’s complaint and brief in opposition to the motion for summary judgment make clear that she also alleges malpractice by the doctor in discontinuing her brother’s medication; and 3) because only state law claims now remain in the case, the district! court should determine whether the requirements for diversity jurisdiction are satisfied.

U.S. 7th Circuit Court of Appeals, October 02, 2009 US v. Ashqar, No. 07-3879 District court’s sentence and conviction of defendant for obstruction and criminal contempt arising from the FBI’s investigation of Hamas activities is affirmed where: 1) defendant’s challenge to the district court’s refusal to his definition of the term “corruptly” is rejected as the court’s chosen instructions represent a complete and correct statement of law; 2) district court’s application of terrorism enhancement under U.S.S.G. section 3A1.4 is affirmed as defendant’s intent to obstruct a terrorism investigation into Hamas activities is supported by a preponderance of the evidence; and 3) defendant’s claim that his sentence is procedurally unreasonable is rejected as the district court considered the parties’ arguments and explained in detail its reasons for choosing the sentence.

U.S. 7th Circuit Court of Appeals, October 02, 2009 US v. Hall, No. 08-2389 District court’s denial of defendant’s motion to modify his sentence pursuant to 18 U.S.C. section 3582(c)(2) is reversed and remanded as the court ignored an ambiguity in the facts with respect to the total amount of crack cocaine sold in connection with the conspiracy and misapprehended the content of defendant’s plea admissions.

U.S. 7th Circuit Court of Appeals, October 02, 2009 US v. Welton, No. 08-3799 District court’s sentence of defendant convicted of distributing crack cocaine as a career offender is affirmed as Kimbrough’s holding with respect to the Guidelines’ disparate treatment of crack and powder cocaine does not include defendants sentenced as career offenders as the latter is the product of Congressional mandate.

U.S. 9th Circuit Court of Appeals, September 29, 2009 Aguilar-Turcios v. Holder, No. 06-73451 In a petition for review of the BIA’s order dismissing petitioner’s appeal from an Immigration Judge’s order finding him removable as an alien convicted of an aggravated felony, the petition is granted where petitioner was not convicted of an aggravated felony as his conviction for violating Article 92 of the Uniform Code of Military Justice did not categorically involve a depiction of a minor engaging in sexually explicit conduct.

U.S. 9th Circuit Court of Appeals, September 30, 2009 US v. Ruehle, No. 09-50161 In an options backdating prosecution of a former Broadcom executive, the district court’s order suppressing all evidence reflecting defendant’s statements to attorneys from Broadcom’s outside counsel regarding the stock option granting practices at Broadcom is reversed where, by approaching the exclusion question with a presumption that the privilege attached, the district court inverted the burden of proof, improperly placing the onus on the government to show what information was not privileged.

U.S. 9th Circuit Court of Appeals, October 02, 2009 Libberton v. Ryan, No. 07-99024 In a capital habeas matter, the denial of petitioner’s petition is affirmed as to the guilt phase of petitioner’s trial where: 1) the Antiterrorism and Effective Death Penalty Act (AEDPA) applied to the petition because the district court had dismissed petitioner’s pre-AEDPA petition and 2) an alleged secret deal between the prosecution and a witness was not material; but reversed as to the penalty phase where counsel failed to call a sufficient number of mitigating witnesses and to pursue evidence of another perpetrator’s primary responsibility for the crime.

U.S. 10th Circuit Court of Appeals, September 28, 2009 Straley v. Utah Bd. of Pardons, No. 08-4170 Denial of petitioner’s habeas petition seeking to overturn his Utah conviction for sexual abuse of a child is affirmed where petitioner brought a constitutional challenge to Utah’s statutory sentencing framework whereby a parole board determined the actual time an offender served in prison, but: 1) there is no constitutional right to an individualized sentence; 2) petitioner provided no evidence that he was treated differently from other defendants; and 3) the sentencing framework did not violate the separation of powers principles.

U.S. 11th Circuit Court of Appeals, September 29, 2009 Rhode v. US, No. 08-15004 In an appeal from a district court’s denial of petitioner’s 28 U.S.C. section 2255 motion to vacate his sentence, the district court’s order is vacated where the district court failed to address petitioner’s claim that counsel was ineffective for failing to file a motion to withdraw petitioner’s guilty plea.

U.S. 11th Circuit Court of Appeals, September 30, 2009 US v. Cohn, No. 07-13479 Defendant’s criminal contempt sentence is vacated where no single sentencing guideline applied to 18 U.S.C. section 401 because criminal contempt was an offense sui generis that could not be classified pursuant to 18 U.S.C. section 3559, and thus the district court erred in classifying criminal contempt as a Class A felony.

U.S. 11th Circuit Court of Appeals, September 30, 2009 Campbell v. Johnson, No. 08-11667 In a 42 U.S.C. section 1983 action based on defendant’s alleged refusal to release plaintiff on bail after the court approved a property bond, summary judgment for defendant-sheriff is reversed where: 1) there were genuine issues of material fact regarding whether defendant personally participated in the alleged due process violation; and 2) the district court failed to determine whether minimizing the enforcement costs of a property bond constituted a compelling interest for purposes of the Eighth Amendment Excessive Bail Clause.

U.S. 11th Circuit Court of Appeals, September 30, 2009 US v. Robinson, No. 09-10846 Defendant’s firearm possession sentence is vacated where, although defendant’s Alabama marijuana possession offense qualified as a serious drug offense under the Armed Career Criminal Act, the district court’s written judgment varied from its oral pronouncement of sentence.

California Appellate Districts, September 29, 2009 People v. Smith, No. A118208 Trial court’s conviction of defendant for robbing a jewelry store is affirmed as, when the owner of a store consents to an “inside job” robbery that occurs while the store is under the control of employees who are unaware of the owner’s plan, the owner’s consent does not vitiate the felonious taking element of robbery. Thus, if the property that is taken was in the possession of the owner’s innocent employees or agents, that is sufficient to make the taking felonious, even if the owner himself is secretly in league with the perpetrators.

California Appellate Districts, September 29, 2009 People v. Thompson, No. A123269 Trial court’s finding that defendant was subject to mandatory registration as a sex offender under Penal Code section 290 based on a sodomy conviction is reversed and remanded as an order imposing mandatory sex offender registration on defendant due to his conviction for a mutually voluntary act of sodomy with a 17-year-old minor violates his right to equal protection, as guaranteed by the federal and California Constitutions.

California Appellate Districts, September 29, 2009 People v. Strider, No. B204571 Trial court’s conviction of defendant for drug possession with a firearm is reversed as the court erred by denying defendant’s pretrial suppression motion because the fenced yard was not a public place within the meaning of Penal Code section 12031.

California Appellate Districts, October 02, 2009 People v. Gordon , No. B209075 Trial court’s conviction of defendant is reversed as collateral estoppel barred the court from convicting defendant of being a felon in possession of a firearm after the jury acquitted him on the charges during which the firearm possession allegedly occurred. Defendant’s claim that he was not properly advised of the rights he was waiving is rejected as he knowingly and voluntarily waived his rights to jury trial on the gun possession charge.